I do not know if we have moved too quickly for the noble and learned Lord, Lord Simon of Glaisdale. The noble and learned Lord has been very attentive to this Bill and given it a tremendous amount of thought. He is a noble and learned Lord for whom we all have the greatest respect. I am certain that he must be about to arrive in your Lordships' House, and perhaps I might take this opportunity to ask the noble Viscount, Lord Colville of Culross, if he has any intimation to make about whether the noble and learned Lord is going to be here or not.

VISCOUNT COLVILLE OF CULROSS

No. I was very much looking forward to hearing the noble and learned Lord, because, particularly on the subject of the first Amendment, he had a point which he made in the course of his speech on Second Reading and has repeated in his first Amendment, and it is something that really needs discussing. The snag about it is that, with the grealtest possible respect to me and to others who are not particularly skilled in the Family Division of the High Court, I doubt whether any of us would do it nearly so well as the noble and learned Lord, Lord Simon of Glaisdale—except that I see the noble and learned Lord, Lord Gardiner, is here: I do not know whether he knows anything about the avoidance or enforceability of ante-nuptial agreements and the affect on Section 1 of the Guardianship of Infants Act 1925.

Obviously it is impossible for the noble Viscount who represents the Government to move an Amendment on behalf of somebody who perhaps is in disagreement with him, but I am sure that it must be in order for me to move the first Amendment standing in the name of the noble and learned Lord, Lord Simon
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of Glaisdale. Accordingly I beg to move Amendment No. 1.

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Page 2 line 5, leave out from begining of line to ("of") in line 6.—(Lord Hoy.)

VISCOUNT COLVILLE OF CULROSS

Without having the argument deployed, I think I shall probably have to do it myself. I will attempt to describe the situation—and may I say in advance that this is a point on which I should welcome the views of the Committee, whether it relates to England (as it does here) or to Scotland under Clause 10(2), because exactly the same point is dealt with, although there is no Amendment down on the Scottish clause. Until 1873 the common law in England was that it was against public policy for a father to make agreements which derogated from his legal position as the guardian and "looker-afterer" of his children. The result was that if he made an agreement with his fiancée before they married which said that in the event of there being any children they would be brought up in the Roman Catholic faith, or in the Protestant faith, or something of that sort, then it appears that at that stage the courts did not consider such an agreement to be valid at all. Equally, in England a separation agreement was not valid either. Therefore if the separation agreement was made between two parties without a court order that the children should be looked after by the mother and that there should be payments of a certain sort by the father to the mother and so on to the children—I hope I have got this right: I was expecting this matter to be explained by somebody else—then the courts did not consider that to be a valid agreement either.

In Scotland the situation was slightly different, since, I am told, nobody has ever heard of litigation on ante-nuptial agreements in Scotland; but there was a slightly similar situation with regard to separation agreements, in that then (and I believe to this day) one could make an agreement which would be enforced by the courts at common law whereby the father paid money to the mother but not whereby he paid money to the children. I do not think the common law is quite the same in England as it is in Scotland, but I will not take that further for the moment.

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In 1873 an Act of Parliament was passed which enabled the courts to take a separation agreement into account, so far as they thought fit for the purposes of the welfare of the child. I said on Second Reading that the same Act also dealt with ante-nuptial agreements, but I was wrong: it did not. The situation so far as ante-nuptial agreements are concerned has never been regulated by Statute at all. So the position then was that in the case of separation agreements the courts could apply them so far as they thought it was right for the child; and in effect this is what is intended to be reproduced in Clause 1(2) when it refers to separation agreements.

Then there came Section 1 of the Guardianship of Infants Act 1925, which said that the courts could have a generally overriding power in any construction of documents or any other litigation in relation to children, so that they could put the welfare of the children first in any case. In these circumstances it is thought that, whatever one said in separation agreements, they could be overridden by the powers of the courts under the 1925 Act, and probably the courts would do the same in relation to ante-nuptial agreements. The courts would look at an agreement under the general power given by the 1925 Act and would or would not enforce it according to what was thought best for the child. There is some modern litigation: there was a case in 1950 which bears on ante-nuptial agreements, though not precisely on this point because in that case both parents were dead, but there was still in contemplation the possibility of two different religious upbringings which it had been sought to regulate by an agreement, though the parties were dead. In fact the court decided that the 1925 Act overrode it all and decided accordingly to do what they thought best for the child.

In this Bill we have a situation which changes the matter to a certain extent. No longer are we in a position where the common law will be able to say that fathers must not give up the duty to look after their children, because for the first time we give these powers equally to the mother and the father. It looked as though the best thing to do so far as separation agreements were concerned was to repeat the substance of the 1873 Act and allow them, as occurs in Clauses
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1(2) and 10(2), to be enforced so far as the court may think right for the benefit of the child. At the same time, since the basis of the common law has changed, as I have said—the common law was based on the idea that fathers should not, as a matter of public policy, be allowed to give up their duties to the children—and since we have now changed that by giving powers equally to mothers and fathers, we thought, when drafting this Bill, that it might be a good idea to clarify the situation in relation to ante-nuptial agreements.

It is on this matter that the noble and learned Lord, Lord Simon of Glaisdale, has taken some issue. I do not think that he wants this provision taken out of the Bill—I am happy to see that the noble and learned Lord is now with us—I do not think he wants the ante-nuptial agreements to be made void, but what I think he wants to do is to retain the existing situation whereby the court could look at them but at the same time would provide for the children in accordance with what is best for them, and would not to be bound by the ante-nuptial agreement, if there were one.

As it happens, the way in which this Amendment is drafted would not do this, because it would have the effect of making the ante-nuptial agreement wholly void and would not allow the court to look at it at all. But if the Committee thinks that what the noble and learned Lord has suggested is right—that is, that we should not try to say anything legislatively like this but leave it to the common law to work out in the context of the Bill, and with the overriding power still in the 1925 Act to consider the welfare of the children first—then I do not think the Government would wish to oppose that. It could not be done by means of this particular Amendment: it would require the recasting of Clause 1(2), but what I would welcome from the Committee is advice on whether, in the circumstances I have described, it would be more sensible to mention this subject, since we are changing the basis of common law, and put it in the same category as separation agreements, but give an overriding right so that the court could take note of it if it wanted but could override it for the benefit of the children, or whether, on the other hand, it would be
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better to make no mention at all of ante-nuptial agreements (which have not been previously mentioned in any Statute) and leave it to the courts to sort this matter out on what I think are the pretty rare occasions when it comes up.

The only remark I would make is that it is plainly not an entirely dead letter, because, as I said before, we had this case in 1950 when the point was touched on. People do still make this sort of agreement. It is on that that I should welcome the advice of the Committee. It probably does not matter very much, but if we do not mention ante-nuptial agreements at all there would be room for argument in the courts. It was for that reason, and for that reason only, that we put this provision in. I do not think there is very much between me and the noble and learned Lord, but I hope that by saying what I have he will have had time to collect his thoughts on what I have been saying. This matter is one upon which the Government have a very open mind and would be glad to be guided by the Committee.

I must first of all apologise most humbly for not having been in my place to move this Amendment at the proper time. I had made arrangements to be given notice, but unfortunately they went astray. I am extremely grateful to the noble Lord, Lord Hoy, Who moved the Amendment on my behalf.

May I explain what I had in mind?—because I do not think the noble Viscount has quite met my point. The reason why there is a similar provision, though not exactly in the same terms, in the 1873 Act as one gets in Clause 1(2) of this Bill—although without the 1873 provision for ante-nuptial agreements—was that at common law any agreement by a father to give up his rights of custody was void, and therefore such a provision was necessary in order to make custody arrangements in separation agreements. In view of Clause 1(1), that is no longer the case. The whole of subsection (2) is quite unnecessary. On consideration, the noble Viscount may well think that it would be better to recast subsection (2) entirely merely leaving in the last part giving the court power to override any agreement. The noble Viscount was good
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enough to write to me about this matter. With very great respect, I do not agree that my Amendment would make anything—separation agreement or ante-nuptial agreement—void. Clearly, any such agreement, in view of subsection (1), would be completely valid and therefore in my respectful submission all that needs to be done is to see that the court has power not to be bound by any agreement come to between the parents, unless that agreement is for the paramount benefit of the child.

On the other hand, the provision in the subsection as it stands at the moment seems to me not only unnecessary, but positively undersirable. The last thing you want to do is to encourage engaged couples to derogate from their rights under subsection (1), and that is precisely what the second subsection does in the provision which I have dealt with in my Amendment. After all, engaged couples are not really the right people to be encouraged to enter into these agreements in derogation of statutory rights. They will be discussing such things as whether their sons will sit on the Woolsack, whether they may go in first for England at Lords, and whether their daughters will be the first women occupants of 10 Downing Street. They are far too amenable to influence to be allowed, if it can be avoided, to enter into the agreement which is contemplated in subsection (2) derogating from their rights conferred in subsection (1). With very great respect, this clause seems to be drafted wrongly in any event. It applies to agreements only if they form part of another agreement: whereas an agreement for separation may be the whole of the relevant agreement. I will not press this Amendment; but I hope the Minister will consider not only whether an ante-nuptial agreement derogating from subsection (1) is unsatisfactory, but also whether subsection (2), apart from its last provision, is necessary at all.

Like the noble and learned Lord, I must apologise for not being in my place at the commencement of the Committee. He said that something went wrong with the arrangement for informing him when the Committee began. I can only say that
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I was sitting in a room with only one other person present waiting for the Fatstock Order to be announced, when I had intended to come into the Chamber, but I did not hear it announced. I wonder whether something has gone wrong with the usual method of letting Members know what is happening. I agree with the view of the noble and learned Lord about this Amendment. What he fears, and what others who have spoken to me about it fear, is that this Bill is somehow giving greater legality to pre-nuptial agreements. As has been explained by the noble Viscount, Clause 1(2) provides that any agreement to relinquish parental authority in whole or in part in relation to any child living or to be born, is to be valid, in the words of the Bill,
only if it forms part of an agreement made before and in contemplation of their marriage or of an agreement for their separation while married, and shall not be enforced by any court
which considers that the agreement will not be to the benefit of the child.

As has also been said, since the enactment of the Infant Custody Act 1973 it has been clear that a separation agreement between spouses may include provision for someone other than the father to have custody of a minor. In a case which has been before the courts it has been established that the courts will not enforce such an agreement if they do not consider it for the benefit of the child. On the otherhand, it is well established in English law that any ante-nuptial agreement by which either of the parties waives in advance his or her parental rights in respect of children to be born after the marriage is void and unenforcible unless acted upon for a considerable time to the financial detriment of third parties. I understand that such an ante-nuptial waiver is sometimes required by the authorities of a religious community from someone not a member of that community as the price of permitting the marriage with a member of the community. The English courts have always considered that such ante-nuptial waivers were undesirable and if extracted have usually considered them unenforcible unless acted upon for years to the detriment of third parties. A reversal of this policy as here suggested might have far-reaching consequences. It could revive sectarian litigation about
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authority over young children when there is not so much litigation at the present time.

The noble Viscount said that he wanted to hear the views of the Committee and I wonder whether putting these words into the Bill will mean that in the future there is going to be more litigation about agreements entered into before marriage. The noble and learned Lord said that he is not going to take this Amendment to a Division and I certainly would not propose that we should do so; but the noble Viscount might consider carefully whether or not in the future this is opening the way to much more litigation, particularly about religious matters as they affect children.

I cannot claim to speak in this field with anything remotely like the learning or expertise of the noble and learned Lord, Lord Simon of Glaisdale, but I must say that when I saw this clause at Second Reading I did not like it, for the following reasons. First, I think it was said that it came from the Act of 1873. This has been acknowledged to have been erroneous, so it is something new.

VISCOUNT COLVILLE OF CULROSS

No, I am sorry. The ante-nuptial settlement business did not come from the Act of 1873. The separation agreement does. And it has to be repealed, replaced, or something has to be done about it.

I am much obliged, and I have no quarrel at all about the provision about the separation agreement. My quarrel is only with the ante-nuptial agreement, which is something new. Married people make agreements every day of the week which ordinarily are not contracts in law. The noble Viscount and the noble and learned Lord will be familiar with a famous judgment by Lord Atkins. If I remember the case rightly the husband had entered into an agreement with his wife to pay her so much housekeeping money a month, and when he did not pay her she sued him, Lord Atkins said: "This is a field in which the King's Writ does not run. Married people make all sorts of agreements all the time. They are their
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Own judges and executioners", and so forth.

As I understand it, this would for the first time treat an ante-nuptial agreement as a legal contract. It seems to me to be most undesirable, for the following reasons: First, I should have thought that in general it is most undesirable to do anything to encourage a parent to give up all his responsibility for a child or children to the other spouse. Secondly, it is most undesirable when he (or she) cannot love them and I say that because if it is an ante-nuptial agreement the children will not have been born and they do not exist as people. One hopes that when the children are born they will be equally loved by both parents, who may then very much regret having made an agreement of this kind. What seems to me to be even more odd about it is that there is no provision that this agreement to give up entirely to the other spouse one's own responsibilities in the field of religion, education, and so on, cannot be made unless each party is separately advised by a solicitor; there is no provision that it has to be in writing—the sort of thing which may be done over the breakfast table—and I cannot really understand on what grounds the proposal is put forward. There seems to be no real reason for it and I should have thought it in every way a most undesirable thing to make an agreement of this kind, even if it may not have legal effect. I hope very much that the Government may be prepared to reconsider this matter.

My trouble here is, that with the greatest respect to those who have spoken I do not think that we have got to the heart of this issue. If I may go back to the speech made by the noble and learned Lord, Lord Simon of Glaisdale, on Second Reading—and he will correct me at once if I am wrong—what I understood him to be saying was, "Take this thing specifically out of the Bill; leave it to the courts (if one of the parties turns up) to deal with as they think fit, with the overriding power always to put the welfare of the children first. Do not mention it in the Bill but leave it to the courts with that proviso—that overriding power". That is what I understood him to say, and if the noble and learned Lord
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does not correct me I shall go on, in the assumption that that is what he wants.

LORD SIMON or GLAISDALE

The noble Viscount is absolutely right but, as I said, on reconsidering the matter it seemed to me that the whole provision is unnecessary because the whole of subsection (2), except for the last proviso from the words "shall not be enforced" to the end, is framed against the background whereby the common law held any agreement by a father to give up custody to be void. Therefore the whole of the subsection is now unnecessary. If any part remains I agree entirely with the noble and learned Lord, Lord Gardiner, that in any event the part relating to ante-nuptial agreements is particularly objectionable.

VISCOUNT COLVILLE OF CULROSS

I am very much obliged to the noble and learned Lord. In that case, may I go on and try to deal with both halves of this matter—both the 1873 Act and the ante-nuptial settlements as well. As I understand, what one has to bear in mind is that the reason why the common law considered and held that both these sorts of agreement were void was because the common law did not approve of the father handing over to the mother his rights and his duties to look after the children.

As these separation agreements which provided for custody were being held by the courts to be void, Paliament stepped in to say, "No, you may be allowed to do this, subject to the welfare of the child and we will validate the agreements with that proviso". Parliament did that in 1873 and it is being reproduced in this Bill; and I think the noble and learned Lord, Lord Gardiner, does not object to that. At the same time, although there is no case law of any modernity at all which touches exactly on the point, it is probable that the common law would still say that the ante-nuptial agreement is void for the same reason.

Why does the noble Viscount say that when Clause 1(1) says that the parents have equality of parental right? What reason should the common law have for saying that for the father to give up his rights to the mother would be contrary to public policy?

VISCOUNT COLVILLE OF CULROSS

With his usual acuteness the noble and
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learned Lord has come to precisely the point which I was about to reach. When I say that, as far as I know, the common law still considers ante-nuptial agreements to be void, although there is very little information on this I am speaking now in terms of this Bill not having been passed. If this Bill were to be passed the whole reason for the common law holding these agreements to be void would fall, for precisely the reason that the noble and learned Lord, Lord Simon of Glaisdale, has just said, in that the basic structure of the law whereby it used to be impossible for fathers to get rid of any of their rights and duties has now been changed. Under Clause 1(1) we now give the father and the mother equal rights. The common law is therefore cut adrift and will have to start again. We do not know which way the courts will go, but certainly if I attempted to argue one of these cases, if one repealed the 1873 Act, as I believe the noble and learned Lord, Lord Simon of Glaisdale, would like to do, and left the matter completely to the common law, I would start off by arguing that any policy whereby this sort of agreement was held to be void as against public policy, had disappeared with the passing of Section 1(1) of the Guardianship Act 1973. The coast would therefore be entirely clear for the common law to re-create a completely new set of rules. What we are trying to do in this Bill is to save the doubt and difficulty which would be involved in that process.

Just as an instance of this, on the ante-nuptial settlement side all the researches of my advisers have produced only three cases with some bearing on this subject since about 1873. It does not come before the courts very often and therefore this is to some extent an answer to the noble Baroness, Lady Bacon—it takes a long time for any rules to be made. We certainly do not want to encourage litigation; all that we wish to do is to try to ensure that there is some basis on which the courts can work if they have to deal with one of these situations.

I would suggest that if one abandons the 1873 Act and does not reproduce it, as Clause 1(2) does—and incidentally in Schedule 3 we repeal that part of the 1873 Act—it is probable that there will be no common law left and the courts will have to start again. I suggest that
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this is undesirable because nobody will know where they are. They will not know whether these agreements are held to be void, valid, semi-valid, subject to overriding powers or whatever. Therefore, I suggest that we do something about separation agreements because they have been dealt with by Statute for some time; and I agree with the noble and learned Lord, Lord Gardiner, that they ought to be dealt with for that reason.

Where we are slightly in discord is whether we say anything about the ante-nuptial agreements at all. I understand the point about not encouraging litigation. I do not think these cases are very common, but if one leaves the matter absolutely at large it may be we shall have quite a long period before anybody knows where they are. The alternative is to deal with it in this Bill and put it on the same footing as the separation agreements, so that if one of these matters does come before the courts (and it is very rare) then the courts have some guidance and can overlook and override anything in the agreement if it is not for the welfare of the child. Then we have established a firm foundation for them to work on arising out of the new situation in Clause 1(1).

What I should like to know is this. If, as the noble and learned Lord, Lord Simon of Glaisdale, has rightly said, we change the whole basis upon which the Common Law used to operate and on which it used to say that these things were void, does he want us to say nothing to put in its place? Does he want the courts (and it would be his division very largely) to start again with no guidance from Parliament; with the abolition of the 1873 Act; and start making their own case law on this, or would he like to have separation agreements dealt with on the same basis as the 1873 Act, giving the courts power to consider them and override them if they think fit? And, if we are to deal with the separation agreement, does he or does he not want the same situation to arise with the ante-nuptial agreements? The alternative is, as he said, to recast Clause 1(2), to make it reproduce exactly the provisions of the 1873 Act, but leave out any reference to ante-nuptial agreements for the sort of reasons which the noble Baroness, Lady Bacon, gave, that we should not encourage these things, and if one were
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to crop up in court just let them scratch their heads and look at the new policy and make of it what they can without any guidance from Parliament. Those are the options which I think are open. Without wishing to prolong this discussion, unless noble and learned Lords wish to, I do not think that we have got to the root of this matter in the discussion and I am not quite sure what it is that the Committee wants.

I am very grateful to the noble Viscount for his reply. As I said, I do not propose to press this Amendment to a Division, but since the noble Viscount has asked me to express a preference, I should myself very much prefer that this subsection merely read:
No agreement between a man and a woman for either of them to give up in whole or in part, in relation to any child of theirs, shall be enforced by the court if the court is of opinion that it will not be for the benefit of the child to give effect to it.
That seems to me to be all that is necessary. It gives sufficient Parliamentary recognition for agreements relating to a child, and particularly in view of the statutory background of the 1873 Act in relation to separation agreements. My second and very strong preference would be, if this subsection remains as it is, the part to which general objection has been taken; namely, ante-nuptial agreements, should be removed. The subsection as drawn goes far beyond what the noble Viscount suggested or agreed on Second Reading was its object; namely, to deal with such agreements as the religious upbringing of a child and, I suppose, the name that a child should bear, and so on. It allows for a fiancé to give up entirely the rights given by subsection (1). I entirely agree with what the noble and learned Lord, Lord Gardiner, has said, that any such agreement should be reached only with legal advice. That has been the experience of the Continental countries which have ante-nuptial agreements about property régime, and that strikes home much more nearly to agreements about the upbringing of a child. In my respectful submission, whatever else is done about subsection (2), that provision should be removed. I need only add that of course a comparable Amendment would have to be made in, I believe, Clause 10. I did not venture
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to put down an Amendment to that clause as it deals with Scottish law.

May I make a single observation? It seems to me that this clause shifts the onus of proof. As I understood the argument of the noble Viscount, the whole of the provisions of this Bill will completely alter the Common Law in the sense that this has gone. Having done that we then write in a clause which says that an ante-nuptial agreement shall be valid in relation to the custody of the children, and then go on to say "but only on conditions". The difference, I agree, is minimal, and I do not want to press the point, but I should have thought that the courts are bound to say: "Parliament has said we ought to look at the ante-nuptial agreement and we can decide it is not valid if we are satisfied that it is not in the interests of the child, and so on." But the mere reiteration in the Bill of the opening words of paragraph (2) appears to me to convey to the courts that they have to look at this agreement at any rate, and that if they are not satisfied with absolute certainty as to where the welfare of the child lies, then the provisions of the ante-nuptial agreement would prevail. In view of the religious implications of some of these ante-nuptial agreements, which I believe are not very common now—and I do not think that the Church very often takes the view that it used to take—but which still happen, on the whole it is clearly the opinion of the Committee that they should not be binding in any circumstances. I feel that the reiteration in Clause 2 puts an obligation on the court to have some regard to them but only, of course—and I say the difference is minimal—when they are able to consider the real welfare of the child.

Before the noble Viscount replies, I should like to reiterate what my noble friend Lord Hale has said. It gives validity to the ante-nuptial agreement. I know that it says at the end of the subsection that it:
shall not be enforced by any court if the court is of opinion that it will not be for the benefit of the child to give effect to it.
But my noble friend Lord Hale has said that the courts will have that before them and a statement that, "this is valid
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unless…". But it is not only the courts that we have to consider here; we have to consider the people outside in various religious bodies, and if this is put in an Act of Parliament in the positive way that it is here, while the noble Viscount may say that there is not very much difference because the courts who will have to decide what is better for the child, my fear is that it will encourage religious organisations to encourage in turn the members of their organisations to have these ante-nuptial agreements. If that is so, then it is possible that there might be more litigation. Like the noble and learned Lord, Lord Simon of Glaisdale, would much prefer to see this out of this clause altogether.

in response to the observations made by the noble Viscount, I should like to make it clear that I should much prefer to see ante-nuptial agreements made invalid for precisely the same reasons that the common law has done so in the case where the responsibility was only on the father. Exactly the same considerations apply to the mother as applied formerly to the father: namely, that it should be contrary to public policy for either parent to be able to give up all their responsibilities, all the rights referred to in subsection (1) over their own child or children, and particularly of course before they are horn, when later on they may very much regret it indeed. The noble Viscount did not say in answer to my question, as I understand it, that it does not have to be in writing, and that it does not have to be under legal advice, and I should have thought that most undesirable. It has never been the law before. On the contrary, the law has always frowned on the father, who was the only one with the right, being allowed to enter into an ante-nuptial agreement which had the force of law. This is the first time that these agreements have been given the force of law. I should much prefer the clause to say quite clearly that ante-nuptial agreements were invalid.

VISCOUNT COLVILLE OF CULROSS

What I shall have to do now is to study everything that has been said. I am grateful to the Committee for contributing as they have. I also take the rather subtle point of the noble Lord, Lord Hale, about the change in the onus and the way in
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which the subsection could be said to have resulted in the agreement being binding unless it is shown that it is in fact bad for the child. It is, of course, perfectly possible to remove all reference to ante-nuptial agreements from this clause, and if we do that—depending slightly on how we do it, but if we make it completely neutral—I think the result is likely to be that the common law may say that they are valid, subject to the overriding power to consider the welfare of the child first, not under common law but under the 1925 Act. This seems to me likely from the argument of the noble Lord, Lord Simon, that the whole of the basis on which the common law used to say that they were void will have disappeared on the passing of this Bill. I do not think the first suggestion of the noble and learned Lord, Lord Simon, of a possible replacement for this subsection, would have had that effect, because I think it would have included ante-nuptial agreements, without mentioning them specifically and therefore without encouraging them; it would have allowed them to be made, but subject to the overriding supervision of the court on welfare, and I think that would probably have met Lord Hale's point, so that we would not have the problem which he has mentioned.

We have now these two views. There is certainly one noble and learned Lord who is prepared to see them contemplated and looked at by the courts. I think probably the noble Lord, Lord Hale, would allow the courts to look at them. Two other speakers have suggested that they should be positively made invalid. I very much doubt whether I can take this further this afternoon. The noble and learned Lord, Lord Simon, is perfectly right in saying that Scotland would have to be dealt with as well. I had mentioned this just a moment before he came in. I think it would be correct to have the same arrangements both sides of the Border on this, and therefore we would have to have the necessary Amendment for Scotland. I am sure that we are not going to resolve this this afternoon, but perhaps I could consider it with my advisers, and perhaps I might ask those who have contributed to this debate to discuss it further with me when I have had a chance to look at the speeches. At the moment I would wish to take the views of my colleagues as to which way to go on this, and perhaps
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come back and talk informally, if I may, to noble Lords afterwards. I hope the noble and learned Lord, Lord Simon, will allow me to do that. I know he said he was not going to press this Amendment, but a good deal has been said and it requires very serious consideration.

I am very content to leave the matter in the hands of the noble Viscount, as he suggests. I have only one further thing to add, which is in furtherance of the point made by the noble and learned Lord, Lord Gardiner, that these agreements contemplated by subsection (2) can be oral. That stands in contradistinction to the 1873 Act, where they not only had to be in writing but actually by deed; it seems to me that to allow oral transitory agreements might depend upon a nod and a wink, in the way the noble and learned Lord described it. To have it necessary to be litigated would be an additional disadvantage. I beg leave to withdraw the Amendment.

§
The noble and learned Lord said: This Amendment goes with Amendments Nos. 3, 5 and 6, and perhaps I may take them together. They all relate to the power of the court to make orders, but not, in line 15 on page 2, an order for custody, or, which is dealt with by Amendment No. 4, a right to access. The present group of Amendments are, of course, alternative to Amendment No. 4. I am pretty sure I have got the drafting wrong, because I found it extraordinarily difficult to trace through the various custody proposals. The point of these Amendments arises out of subsection (3). That gives the parents of the child power to go to the court to have their differences over the child resolved without, as at present obtains, having to make the child a ward of court, or having to be separated or divorced. As I understand subsection (3), the parties may, if they differ about the upbringing of a child, go to the court, even though they are in a state of cohabitation. I wholly approve of that; I think it is desirable
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that the parties should be enabled to get independent arbitrament without the necessity of their separating, or the rather archaic mode now of making the child a ward of court. But that is subject to subsection (4), which says that the court in exercising its powers under subsection (3) shall not make a custody or access order.

§
I am at the moment dealing purely with a custody order, and my interest in it is this. On a custody order the court can make a supervision order, and that, as your Lordships know, is a very valuable power. When I used to have to sit in a family jurisdiction and made a custody order after divorce, I used often to try to persuade the parents, or the parent, having custody, if I felt that she (it was generally the mother) was in need of social support, to accept a supervision order—occasionally a local authority order, although that would be a more remote possibility. I used to assure the mother that it was no sort of reflection on her if a supervision order was made. It was merely making available to her social services which Parliament had provided, if she welcomed them. I always found that such a suggestion was received without resistance of any kind, and I have every reason to believe that it may often be helpful to a parent, particularly a mother, separated and having to bring up children, to have the assistance of the local authority children officer or a probation officer.

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In this series of Amendments I am not sure I have dealt with the matter correctly. My sole object is to enable a supervision order to be made if the parents apply to the court under subsection (3). The way that I have chosen to do it (it is probably the clumsy way) is to enable the court to make, say, an order for custody jointly in favour of both parents and attach to that a supervision order. I am not proposing—I would not regard it as desirable—that a custody order should be made in favour of one parent only while the parties are in cohabitation. My object, as I say, is quite different: it is to enable a local authority order, or more frequently a supervision order, by a probation officer or children officer, to be available to parents who have fallen out, which is the situation which pis envisaged by subsection (3). I think that very often when
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parents have got to that state of disagreement and have to go to the court they might well welcome the help of an experienced welfare officer. I beg to move.

VISCOUNT COLVILLE OF CULROSS

I am bound to confess that we were not altogether clear what it was that the noble and learned Lord was trying to achieve in this series of Amendments though I appreciated that two were alternative to each other. What I should like the noble and learned Lord to tell me in the furtherance of his argument is this. Under Section 9 of the Guardianship of Minors Act 1971 the court can, on the application of either parent, make an order regarding custody or access such as it thinks fit, having regard to the welfare of the child and the conduct and wishes of the mother and father. It can deal with the money, and that order under Section 9 can be made notwithstanding that the parents of the minor are then residing together.

But am I not right in thinking that it can come into effect only when the parents separate?

VISCOUNT COLVILLE OF CULROSS

The noble and learned Lord is quite right. I was just going on to read that it is not enforceable and no liability will accrue while they are living together, and that it lasts only for three months if they continue to live together. I do not know—andthis is simply ignorance on my part as I was not prepared for the line which the noble and learned Lord took—whether in those circumstances that is inadequate, because I should have thought that if either of the parents go, then under Section 9 the court can consider the question of supervision. What we are dealing with in Clause 1 is not, I think, the case of the parents who are separated, with the mother having to bring up the children by herself and requiring the assistance of the local authority, which is one of the examples which the noble and learned Lord gave. Under Clause 1, as I understand it, we are really dealing with a situation where there is no basic matrimonial upset but what is wanted is some resolution of the rights of the child to money, or it may be his religious upbringing or something of that sort, but against the background of a stable matrimonial situation. Of course, if there is a
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stable matrimonial situation it really cannot be suitable to give access or custody to one or other of the parents. I do not think that that is what either the noble and learned Lord or the Government want to do.

The only question arises if you do not give custody or access, and if you think that Section 9 of the 1971 Act is inadequate in relation to supervision. Then do we want to put in this Bill something about supervision despite the fact that the hypothesis is that the two parents are living happily together? I should have said No. Has the noble and learned Lord got any example in mind, from his enormous experience, which suggests that happily married families, who might under this Bill go to the court to resolve some question of the child's property or change of name on the inheritance of money under a will, or something like that, would also want supervision from the social work department of the local authority? I should have thought that if they did it would be more likely to occur when there was disharmony, and the existing law already deals with that. I am quite prepared to consider this matter but at the moment I am not convinced that there are occasions when it would be necessary in practice.

Would the noble and learned Lord elucidate one point for me as a magistrate? He made the point that supervision would be a voluntary matter; that they would call in the children's officer. That is not, I must confess, how I have understood supervision. I rather thought there was some element of interference—using the word in its widest sense. Perhaps the noble and learned Lord would elaborate that subject.

My recollection is that the noble Baroness is quite right. I think a supervision order can be made only in exceptional circumstances, but in fact the courts interpret that failrly liberally and regard it as an exceptional circumstance where one of the parents needs some social support. That has been my experience of how magistrates work that provision, and certainly it is how the Judges of the High Court do. As to what the noble Viscount said, I am not entirely happy about reliance on
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Section 9 of the 1971 Act. The reason for that is that that Act cannot bite unless the parties separate. The whole advantage of Clause 1(3) is that parents living together can get their differences resolved without having to separate, but where I venture to part from the noble Viscount is when he describes that sort of situation as one where there is a stable and happy marriage. When the parties have to go to court under subsection (3), there is likely, to be at least some danger of instability, some danger of unhappiness and certainly a disagreement. The court may well feel that the marriage is in danger to the detriment of the children by the difference over the children, and may feel that the support of an experienced welfare officer may make all the difference to the happiness of the parents and the children. It is simply to allow for that situation that I venture to move these Amendments, but I am very content to leave the matter for the further consideration of the noble Viscount.

VISCOUNT COLVILLE OF CULROSS

Before the noble and learned Lord leaves the point, may I say that I cannot see why the parents should not go to the social work department voluntarily if they wish, to get the assistance of the experts. Section 1 of the 1969 Act is quite wide enough in providing preventative powers for anybody to be allowed to approach the local authority for that sort of assistance. What the noble and learned Lord is saying is that when the parents come, whatever the background may be, under Clause 1(3) they will put themselves in a position where compulsory supervision may be ordered by the court, whether they want it or not. I do not know about that, but it seems to me that if you go to the court in order to resolve something which is, so far as the two parents are concerned, not an issue which goes to the root of the marriage or is likely to cause unhappiness, but merely arises out of the fact that both parties are now legally in charge of the child and its property and its upbringing, and you find yourself suddenly getting compulsory supervision from the local authority which you did not want at all, you may not be so willing to go to the court to get it resolved. I do not know what the balance of this is, but I think that the noble and learned Lord must realise that what he wishes to do is to put in compulsory
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supervision which may be quite unsuitable.

Like the noble Viscount, I am thinking on my feet because I was not aware of what the noble and learned Lord, Lord Simon, was really getting at in these Amendments. I did not realise that it was anything to do with supervision. I should like to ask the noble Viscount one question. He said that if the parents go to court on such matters as a bank book or the name or something of that kind, surely they should not have to be subjected, perhaps at the discretion of the court, to compulsory supervision. Surely, it does not necessarily follow that those are the sort of matters about which parents will go to court. Like the noble Viscount, I am not quite sure what the noble and learned Lord has in mind, but are we quite sure that there will not be other matters about which parents will go to court, where supervision might be suitable? I can see the noble Viscount's point, that if there is to be supervision the parents might not be so willing to go to court to get something adjudicated upon, but might there not be other circumstances where supervision is desirable? It seems to me that this Amendment would be putting power into the hands of the courts, and that we should have to rely upon the courts fo do the right thing in the circumstances. I do not know whether or not we should go so far as that, and I should like to know whether there are circumstances other than the one which the noble Viscount mentioned.

VISCOUNT COLVILLE OF CULROSS

We have not looked at the point in this way, but I understand what the argument is about. I think I ought to look and see whether there are powers elsewhere to deal with all the other aspects which are likely to have more sinister undercurrents. I believe that those are more likely to be dealt with under other legislation, but if we can think of circumstances where Clause 1(3) disputes under this Bill would be likely to show up a very unhappy home, and circumstances where assistance might be needed—which is really the point the noble and learned Lord has in mind—then perhaps we can return to the matter at another stage. I am grateful to the
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noble and learned Lord for having raised this point. I think it is interesting and useful, but I cannot give him a definitive answer this afternoon.

On the contrary, it is for me to express my gratitude to the noble Viscount and, as I said, I am content to leave the matter to his further consideration. Of course he is quite right in saying that there is nothing to prevent parents voluntarily approaching the local children's department or the probation officer, but I have found extraordinary ignorance about the welfare services that are available and it is often very useful for the court to be able to use its influence in trying to help the parties, by putting them ill touch with the welfare services. As for the point of forcing a supervision order on the parties, I should think that would very rarely be desirable although I can envisage circumstances in which it might be; for example, where the parents have fallen out about a child and the court thinks that the child might be in danger of falling into delinquency and can be helped by supervision. But that would be an exceptional case, and I should have thought that the safeguard was in using the words which I used earlier in answer to the noble Baroness on the Opposition Front Bench; namely, that a supervision order ought to be made only in exceptional circumstances. But I beg leave to withdraw the Amendment.

§LORD SIMON OF GLAISDALE moved Amendment No. 4:
Page 2, line 15, leave out from ("or") to end of line 16.

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The noble and learned Lord said: I have dealt with the background of this Amendment, which is the refusal to allow the court to make an order relating to access when it operates its powers under subsection (3), although this Amendment raises a rather different point. I imagine that, very often, a dispute under subsection (3) will relate to the education of a child, and I think all judges and magistrates concerned with this jurisdiction will have been worried about the great difficulty that schoolmasters and schoolmistresses are put into where the parents are at variance. I know that the noble
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Baroness can speak to that point with great authority. I often found it absolutely necessary in directing an order as to education, to order school visiting or to deal with weekends spent away from boarding-school and so on. It is now possible to get children to local authority boarding-schools, so that applies to all parts of the social spectrum. In my view, it is absolutely necessary to deal with the rights of access in that situation, and I hope that the noble Viscount may consider that point. I beg to move.

VISCOUNT COLVILLE OF CULROSS

I am afraid that I do not understand the situation in which these circumstances are likely to apply. Is the noble and learned Lord talking about parents living together, who are therefore not within the catchment area of Section 9 of the 1971 Act, who fall out over the sort of education that a child will have or over who will visit on which weekend? It seems to me almost inconceivable that if they are living together and are not separated, so that access cannot be dealt with under Section 9 of the 1971 Act, we shall ever have a problem. I just do not understand what the circumstances might be, unless the marriage is so unhappy that the parents are holding it together only for the sake of propriety and, in fact, there is open warfare going on between them. With the greatest respect, that seems so far-fetched an occurrence when the parents are actually living together.

Of course, we have not yet had experience of the courts' jurisdiction when the parents are living together because, although theoretically it can arise under a wardship order, in fact it never does. All we have had experience of is the situation where the parents are separated, and it is drawing on judicial experience of that kind that led me to make this point. Although it might be unusual it could certainly happen. If there are parents of different religions, there might be a dispute about how the child shall be educated. Shall the child go to a boarding-school where he will be brought up in religion A, or to a boarding-school where he will be brought up in religion B? One would hope that while the parents were living together they would visit the child jointly, and be able to regulate the situation satisfactorily. But, as I said, school
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masters and schoolmistresses are put in extraordinary difficulty when parents are not agreed about their children. I should have thought it was well worth while to leave a residual power with the court for the exceptional case, whereas by line 15 the court has no such power at all.

On this Amendment I tend to agree more with the noble Viscount than with the noble and learned Lord. In my dealings with education I have come across many instances where parents have been separated and headmasters and headmistresses of schools have been put in very difficult positions indeed by one parent turning up and demanding to see a child or interfering in his education. I must say, from long experience, that I cannot remember any case at all where this has happened, or where there has been difficulty when the parents have been living together. It may be that there is such a difficulty: all I can say is that I have never come across it. The noble and learned Lord, Lord Simon, said we ought to have this in for the exceptional case. I think it would be very exceptional indeed, and I have very grave doubts about whether one ought to legislate for something so exceptional. But I agree that where the parents are separated then there is this very great difficulty with regard to education and access in schools.

VISCOUNT COLVILLE OF CULROSS

I am encouraged by what the noble Baroness has said. Of course, where the parents are separated the existing law deals with it, because you can deal with it under a number of other Statutes. But on reflection, and now that I can again see, with respect to the noble and learned Lord, what it is about, I am not sure that I do not see something of the danger in this that the noble Baroness was pointing to about ante-nuptial settlements. If we provide in the law that parents can have a row about taking the children out from school when they are living together and allow the courts (under the Bill, of course, drafted as it is) to talk about rights of access to children when both parents are in the same breath being given equal rights of custody and access, we are only encouraging friction in the family and encouraging the courts to take a view about a family which gives rights of access to one rather than the
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other instead of acting in a way which, one would have hoped, would have kept the family together. I should have thought, upon further reflection, that there was very little to be said for this, and that it might actually be damaging. I do not want to turn it down without further thought—I promised the noble and learned Lord that—but my predilection at the moment is to say that I think this is a bad Amendment and probably should not be made to the Bill.

Having been deserted by the noble Baroness, I naturally hasten to withdraw the Amendment all the more readily on the kind assurance of the noble Viscount that he will give further consideration to the point.

I should like to raise one point with the noble Viscount. On page 1, in Clause 1, we have the whole kernal of this Bill. It says:
…a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other".
During the Second Reading debate on this Bill I raised the question of passports, and whether this clause meant that, so far as passports and taking children out of the country are concerned, there would be equal rights. During the Second Reading debate the noble Viscount said that the question of passports was a very complicated one. He said that he had already asked his right honourable friend the Foreign and Commonwealth Secretary to look at this problem, but he had not yet got to the bottom of the matter and he asked whether he could take this back for the moment and then come along and give us a better answer later on.

I have had a letter from the noble Viscount, for which I should like to thank him, in which he sets out the position about passports in cases where the children are on either the mother's or the father's passport. Having read this letter, I myself think that the position seems quite satisfactory so far as children are
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concerned, and some of the fears that have been expressed to me about this are perhaps groundless. But since I have had this letter and the rest of the Committee do not know what is in it, I raise this matter now to give the noble Viscount an opportunity to give to the Committee the information which he gave to me in the letter.

Before the noble Viscount replies, I should like to raise one other point with regard to subsection (3), which deals with proceedings in a court. I raise it here because I shall have to raise it again when we come to the clause dealing with Scotland, the matter having been raised with me by the Scottish Law Society. Perhaps we might deal with it here. In fact, of course, either parent can go to court, but even though it be the wife who takes the husband to court then apparently, according to their reading of it, win or lose the husband has to pay all the expenses. So the wife can go to court in the knowledge that, even if she loses, although she has been granted equal rights she is going to have the right not to pay, and the total cost will fall on the husband. I thought that, instead of waiting until we got to the Scottish clause dealing with this, it would be applicable to England and Wales as well as to Scotland, and perhaps the noble Viscount when he comes to reply will tell me where in fact the expenses will fall.

VISCOUNT COLVILLE OF CULROSS

Dealing with that point first, it had not occurred to me that this would be a direct result of the Statute. Indeed, I cannot see anything in either Clause 1 or Clause 10 which deals specifically with costs. I think the practical situation may very often be that the father would have to pay, because unless the wife has money of her own then, even if the case goes against her, an award of costs against her is wholly valueless to the father. But on the face of it I cannot see any reason why, if there is a dispute between two parents, each of whom has money of his own, there is anything to prevent the court from awarding costs against whichever one it chooses, and the award being enforceable that way. I see nothing in Clause 1 to prevent them from doing that, and I wonder what specifically it is that the Scottish Law Society saw in Clause 10 which gave them that idea.
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Possibly the noble Lord will be so good as to take this up with me afterwards, or perhaps show me any correspondence he has had, because I should like to make quite sure we do not have a ridiculous situation here. But I think one must accept that, in practice, if the wife has no money of her own then costs cannot realistically be awarded against her, and that if they are they will not be paid. That is a situation which often arises.

The noble Viscount says that if that is the situation we shall get into this ridiculous position. According to the legal advice I have, this is exactly the position in which we would be. I shall be delighted to pass to the noble Viscount the correspondence in which this is argued, I think firmly and fairly, by those who deal with these matters in Scotland. The sole reason for my raising it on this particular clause is that I did not feel I ought to allow it to pass here and then raise it at a later stage. I thought that would be unfair. But I will certainly pass the correspondence to the noble Viscount.

VISCOUNT COLVILLE OF CULROSS

The noble Lord, Lord Hoy, has done me a great service in drawing attention to this. Perhaps he will take it for granted that I will deal with it on the Scottish clause as well if I can see the argument, which at the moment, frankly, I do not understand. I am sure I shall when I read it, and no discourtesy is intended to the noble Lord; he was just mentioning it very briefly.

As for the point raised by the noble Baroness about passports, I quite agree it would be a good idea if I repeated what my colleagues in the Foreign Office told me. The present situation is that a child may be included on his father's passport or on his mother's passport, or on both of them simultaneously. Under the existing practice, a mother who wants to take abroad a child who is entered on his father's passport has only to apply to the Passport Office to have him entered on her own passport, always provided that no objection has been lodged by the legal guardian or by a party awarded custody or care and control by a court, or by a party whose consent is prescribed in an order of the High Court. This, I think, was a relaxation of the previous practice which was announced by Mr.

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George Thomson in what looks to me like a Written Answer in another place on January 27, 1966, where the situation is very fully set out—and I referred the noble Baroness to that in my letter.

That applies to the standard ten-year passports. If the Bill is enacted as it is at the moment, then provisions will have to be made to take note of any objection made under Clause 1(3) or Clause 10(3) in the case of a court order which gives any directions under those two provisions. So the practice will be very slightly modified under these two provisions for England and Scotland if the Bill is passed as it stands at the moment.

As for British visitors' passports, the situation is rather different. Before one is issued for a child the consent of the legal guardian, normally the father, is required. That is the present situation. Once both parents have assumed guardianship rights, as the Bill envisages, it is possible that British visitors' passports will be issued with the consent of either parent; but the parents giving their consent in this way will be required to sign a declaration that their rights in respect of the child have not been in any way limited by a court order. I think therefore that the situation is fairly satisfactory. It will require a little revision under the Bill but the Passport Office have this in mind already and are alive to the changes that are coming about. I hope, as the noble Baroness has indicated, that this will succeed in alleviating any worries there may have been.

§BARONESS BACON moved Amendment No. 7:
Page 3, line 20, leave out from ("authority") to end of line 21

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The noble Baroness said: The effect of this and of the next Amendment, which is consequential, is to ensure that where supervision is necessary for a boy or a girl below the age of 16, that supervision shall always be carried out by the local authority social services department and not by the Probation Service. I dealt with this in some detail during the Second Reading debate. If my Amendment were
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passed it would be in line with the Report of the Seebohm Committee and also with the provisions of the Children and Young Persons Act 1969. This part of the 1969 Act has not yet been implemented by the present Government, but from a speech made by Mr. Mark Carlisle, the Minister of State, Home Office, which I quoted during the Second Reading debate and which I shall not quote at length now, it is the Government's intention to implement that part of the 1969 Act. In that speech, Mr. Carlisle referred to the many additional duties being placed on the Probation Service and said that the Government maintained that the supervision of children under 14 and the provision of inquiry reports should be progressively handed over to the local authority social services committees. The local authority social services department have links with the education department of the same local authority in a way which the Probation Service does not have.

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The noble Viscount, in his reply on Second Reading, said that the present Bill is in line with the matrimonial proceedings in magistrates' courts but surely it would be better in dealing with children to bring the matrimonial proceedings in Line with the new Children and Young Persons Act. I think it is right that the same procedure for the supervision of children should be adopted no matter under which Act it is dealt with. Therefore. if the Government intend to implement this part of the 1969 Act, I think that there is a good case for saying that, in all cases where the courts say that supervision is necessary for children under 16, that supervision should be undertaken by the social services department of the local authority and not by the Probation Service.

§
The Children and Young Persons Act 1969 says that this will be done in that Act. In that Act many of the young people appearing before courts will be appearing because of some misdemeanour they have committed. Yet the Government have accepted in all these cases that it shall be the social services department of the local authority which shall provide the supervision in the future. It seems curious to me that the children with whom we are dealing under this Act to-day should be supervised by a
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probation officer when they will be coming before the courts because of a dispute between their parents.

§
I have the greatest admiration for the Probation Service. I think they are grossly overworked and more and more work is being put on them. I should have thought that it was in line with modern thinking and with the thinking of the Seebohm Committee and of all those committees who have considered this matter, that supervision should be handed over to the social services department of the local authority. I feel strongly about this and I know that many people in the country also feel strongly about it. Perhaps the noble Viscount in his reply could give us some indication of the progress of this part of the Children and Young Persons Act 1969. If the Government are going to drag their feet on this part of their Act, perhaps there is some justification for the noble Viscount sticking to the wording of the present Guardianship Bill. But if in fact they are wing to implement properly the Act which was passed in 1969, I see no reason whatever to put the children who come before the courts because of a disagreement between their parents on a completely different footing from those who come before the courts for other reasons. I therefore beg to move this Amendment.

VISCOUNT COLVILLE OF CULROSS

I am a little sad that the noble Baroness should have taken quite this line. If one looks at some of the provisions in the Children and Youne Persons Act 1969—and I am thinking particularly of the approved schools, or what used to be the approved schools—the fact is that the Government who passed that Act were not in a position to be able to provide for the necessary implementation of it. There has been a great deal of trouble caused by the lack of preparedness. If the noble Baroness were still in the position she used to hold (and which I now hold) and had had discussions with magistrates about the shortage of some of the provisions which ought to have been provided under that Act, then I think that perhaps she would not be quite so pleased with the work done then as she is at the moment.

I do not see that that has anything to do with it.
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It has, to this extent. The aspirations of the then Government in handing over the work from the Probation Service to the social services departments was dependent upon staffing. This is the crux of the matter. The noble Baroness has said that the Probation Service is heavily worked. It is. That is one reason why in the Criminal Justice Act we were careful only gently to load it with extra work.

We are gradually raising the age under which children will be dealt with, not by the Probation Service but by the local authority social service departments. I accept the argument that this is a good thing. We are doing it gradually; but we are doing it only as the staff becomes available in the social service departments. This is not a matter for the Home Office; it is a matter for my right honourable friend the Secretary of State for Social Services. His judgment, with which I would not disagree, is that we cannot go overboard at this stage. I am sure that the noble Baroness is right in saying that this Bill, the Matrimonial Proceedings (Magistrates' Courts) Act 1960, the Matrimonial Causes Act 1965 and the Family Law Reform Act 1969, all of which provide in one form or another for supervision either by the Probation Service or by the local authority, should be kept in line. That is what she said. I agree. The question is: Which line? Do we take the opportunity of this Bill suddenly to impose on the social services departments the 4,000 children—and I ask the noble Baroness to note that number—who are at the present moment being supervised by the Probation Service as a result of matrimonial proceedings—because the advice I have is that, with the best will in the world, the social services department could not take it on.

What is going to happen is this. We shall gradually raise the age, as the Minister said in the other place in the speech referred to by the noble Baroness. We shall do it step by step in accordance with the availability of staff in the social services department. So the provisions in all these Statutes which allow the courts to make supervision orders by a probation officer will drop out. More and more children will go to the social services department.

I must advise the Committee that this is the only satisfactory way to do it. We are all going in the same direction
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as the noble Baroness. But to amend all these Statutes at this stage, and to insist that all children requiring supervision as the result of any form of matrimonial proceedings must be dealt with by the social services department, just is not on in terms of staff at the present time. I hope that the noble Baroness will realise the situation and that the right way to do this is to take it gently, because in that way we shall achieve what she wants without suddenly shifting this intolerable work load on to the local authority department.

May I ask the noble Viscount a question about this, because I am very interested? In Scotland all the children are looked after by the social services department and there is no question of any probation officer coming in at all. As I read the Bill it seems to me to be possible that those in social work departments are charged with the supervision, and you are leaving in supervision by the probation officer as an alternative, but not the only alternative. Is that right?

You can even now ask the social services department to supervise. In Scotland it would be impossible to suggest that supervision should be carried out by the Probation Service since it is all done by the social services.

VISCOUNT COLVILLE OF CULROSS

My noble friend is quite right. If she looks at Clause 11, which is the Scottish equivalent for this clause, she will see that there is no reference to the Probation Service at all. This reflects the situation in Scotland, where they are more advanced than we are South of the Border. But here we are dealing with England and Wales. Again she is quite right that there is a choice. The courts have chosen the Probation Service in the case of 4,000 children who at the moment are being supervised by probation officers; and it is this case load that I am worried about in relation to any attempt to accept this Amendment.

I would agree entirely with the noble Baroness, Lady Bacon, and I think her
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view is agreed to by the noble Viscount, Lord Colville of Culross: that young children are better dealt with by the local authority, and older children by the Probation Service. But I would draw attention to one transitional problem which ought to be considered whether the matter is to be dealt with legislatively, as the noble Baroness has suggested, or administratively, as the noble Viscount prefers.

VISCOUNT COLVILLE OF CULROSS

I must interpose here before the noble and learned Lord continues because I have misled the Committee. I am afraid I was wrong. The Law Commission is looking into this at the moment. It will require legislation in respect of these other Acts we are talking about, and I think the Committee should be put right at once. The factual situation remains as I have said, but the age limit can be raised only under the provisions of the Children and Young Persons Act. It does not have the consequential effects in these other areas of legislation. I am very sorry, and I apologise to the Committee.

I am very grateful to the noble Viscount. I think the point I was venturing to make will have to be dealt with just the same. Courts have found it desirable that all members of a family are dealt with by the same social unit, and where you find a probation officer seized of one family problem it is generally desirable that he should be enabled to continue to supervise any other member of the family who needs that help. I think that many benches of magistrates, who know their probation officers very well, would know that; and perhaps that transitional problem could be borne in mind when legislation is considered.

I am grateful to the noble Baroness, Lady Elliot of Harwood, for drawing attention to the point to which I drew attention during the Second Reading debate; namely, that Scotland is very much ahead of England in this respect, in that the Probation Service there is a part of the social services. Whether a child is dealt with by a social worker or a probation worker, it is part of the local authority and the difficulty which I have pointed out to-day does not arise. This is due to the fact
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that the Kilbrandon Committee reported about 1964, and the then Government had the advantage of that excellent Report, but we in England had not.

I am pleased that the noble Viscount Lord Colville of Culross, realised his mistake about legislation. Indeed in the Children and Young Persons Act it is laid down that it shall be the social services department rather than the Probation Service which will supervise children under a certain age. The only point at issue here is when the Government will bring in that part of the 1969 Act. It was my point that when that was brought into operation it would surely be anomalous if those children appearing before the courts under the Children and Young Persons Act, who were not able to be dealt with by a probation officer, but were dealt with by the social services department, should be treated differently from those children whose parents come before the courts and who are put under supervision either of the social services department or of the Probation Service. I want to ensure that all children are treated the same in this respect. I was pleased that towards the end of his speech the noble Viscount said that progressively these other Acts would be brought into line with the Children and Young Persons Act. I should like him to give me an assurance that when this part of the Children and Young Persons Act is brought into operation the Government intend to bring these other Acts into line, because that is what I am asking for.

It was totally unnecessary for the noble Viscount to give me a lecture about community homes and approved schools. I know all about them, and I am very pleased to have been associated with the policy of doing away with the approved school order, which was fought by so many people in this country, including magistrates. I am very pleased that the present Government—even though the noble Viscount seems to think that they have had a struggle to do so—have been able to adopt that policy. But I do not see what it has to do with this Amendment—except that somehow the noble Viscount wanted to get something off his chest. I very much deplore the fact that I got that lecture. It was totally unnecessary. I could probably teach the noble Viscount a few things about approved schools and community homes. I have probably visited far more of them than
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he has. I should like to get a specific assurance from the noble Viscount that when that part of the Children and Young Persons Act is brought into operation, making it possible for children under a certain age to be supervised only by the social services department and not by the Probation Service, the other Acts will be changed to bring them into line with the Children and Young Persons Act of 1969.

I thank the noble Baroness and I have now got it off both our chests, and perhaps we can forget it on the other parts of the 1969 Act. I cannot possibly give this assurance. It has nothing whatever to do with the Home Office. It is a matter for my right honourable Friend the Secretary of State for the Social Services to deal with, because it is going to be done by the social services department, and he has to be satisfied that the social services department have the staff to carry this matter through. I have no idea whether and at what stage he will be satisfied that this is so. I am sorry, but I really cannot give the noble Baroness that assurance.

What I was saying about its being progressively applied was, I am afraid, part of the mistake. I was under the mistaken impression that as you raise the age under the Children and Young Persons Act it would have an effect across the board; but the Children and Young Persons Act was not drafted so as to apply to the various matrimonial Acts as well; therefore it does not have the consequential effect if you raise the age under the 1969 Act. It would need legislation to change the arrangement whereby at the moment the courts have a choice between the Probation Service and the social services department. One of the reasons for the exercise of their choice, as we all know well, is that which the noble and learned Lord, Lord Simon, gave: that they want all the members of the family to be dealt with by one agency. It would need legislation, and I am afraid I cannot give the noble Baroness an assurance that we shall be able to have that legislation step by step with the Children and Young Persons Act legislation.

I am sorry to hear that. I thought the only mistake
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that the noble Viscount admitted was that it would need legislation. I thought he was saying that we shall need legislation, and that we must have this legislation. So the whole of his reply to me was based on a wrong assumption, and there is going to be no change in these other Acts of Parliament.

So we shall go on in the future with children under a certain age appearing before the courts under the Young Children and Persons Act and being dealt with by the social services department, but any other children, who perhaps do not come before the court but whose parents come before the court on something affecting the child, might be supervised by the social services department or by the Probation Service. This can perhaps go on for ever. There will be this anomaly for many years to come, and the Government hold out no prospect for a change. I must say that I find this most unsatisfactory. I thought that the noble Viscount gave me as his first answer that he was agreeing with me that it was desirable that what I have suggested should be done, and was merely saying that it would be done progressively because we could not do everything at once. I realise the difficulty of suddenly taking 4,000 children who are supervised by the Probation Service and putting them under the social services department. I thought the whole of the noble Viscount's argument was that it would be done progressively and in stages. But now he tells me that it will not be done at all.

VISCOUNT COLVILLE OF CULROSS

What I said—I said it rather quickly, and the noble Baroness may be excused for not having heard me—was that this was one of the matters that the Law Commission are looking at at the moment. So it is not right to say that I can hold out no prospect of its ever being done, and that it will go on for ever, because it is something that is subject to a current Law
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Commission Working Party. The question whether the social services department will be able to cope is, I think, the other important question, and I am glad that the noble Baroness recognises that, because I am sure it is a serious argument of which one has to take cognisance. But I do not want the noble Baroness to think that the Government have washed their hands of this problem, because it is, as I say, something that the Law Commission are looking at.

I should like to thank the noble Viscount. He has gone back a little to where he stood in his first reply. The hour is very late. I do not feel like withdrawing the Amendment, and it will have to be negatived.

I find myself very unhappy after all the courtesy of the noble Viscount, all the assistance he has given and the pains he has taken, that immediately after he has had a complaint from the noble Baroness, Lady Bacon, that she received from him an unnecessary letter, I have to rise to say that I have not had a letter. I did not table an Amendment. I thought it would need a new clause. The noble Viscount said that Schedule 2 possibly might have some implications in this matter. I raised the question of the stepmother who has had the care and custody of the children practically throughout their lives, and who appears to be excluded.

It seems that under the provisions of Clause 2, and indeed under the Act of 1971, the court could, if they were fully informed of the matter, say that the stepmother, although a stranger, could be entrusted with the care as a suitable person. As I understand it, there is as yet no provision by which she can bring herself before the court. The court are fully informed, and I think they could do it. I speak with great hesitation about this matter, because I am much out of date in it. However, I think it is an important point. In view of the noble Viscount's promise to look into the subject and possibly have a word to say about it, I wonder whether he can say that he has
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made any further inquiries (I gather now that we seem likely to have a Report stage), whether I should table a new clause, or whether he thinks the question might be referred to the Law Commission who are considering some of these problems at the moment.

VISCOUNT COLVILLE OF CULROSS

To be truthful, at the moment I have not anything to tell the noble Lord, Lord Hale, about this point. My recollection is that the noble Lord raised it under Clause 1 rather than under Clause 2. I thought he was saying that in the case of a stepmother she should have equal rights with the true father of the children. I did not think he was raising the question under Clause 2, which of course is an entirely different section of law which attempts to assimilate the guardianship proceedings to those which the magistrates' courts already have under the 1960 Act. The noble Lord would do me a great service if he could tell me which of the two areas he wishes me to explore.

The noble Viscount's recollection is quite right. I raised the matter on Clause 1, but I rather thought I was told that I raised it on the wrong clause. I have been told that so often that I may be thinking of the wrong case. To the best of my recollection, the noble Viscount referred to Schedule 2 and the provisions there. However, I have raised this point now, and certainly I had in mind something analogous to equal rights for the stepmother, where she was effective, with the mother. I do not know what the noble Viscount would like me to do about it. Would he like me to table a new clause, or to put down an Amendment, or will he look into it again?

VISCOUNT COLVILLE OF CULROSS

I should be more than grateful if the noble Lord would write to me setting out precisely what is the proposition that he would like me to consider, because I do not think now it has anything to do with Clause 2: and if I referred to Schedule 2 in this context in relation to Clause 1, then I must have made another mistake. Therefore if the noble Lord would be so kind, if he has the chance this evening or tomorrow, to set out on a piece of paper what he wants to see happen about stepmothers, I shall be glad to see whether we can do it or not. At the moment, I am afraid I am a little muddled about it.

I should like to ask a very short question of the noble Viscount which I think arises on Clause 3 because of a reference to an order in the High Court. It is at page 4, line 42. I have succeeded the noble Viscount on a legal treadmill known as the Joint Committee on Consolidation Bills. We have recently consolidated the Matrimonial Couses Acts and I should like to ask whether this Bill will affect those Acts and whether there will be further consequential consolidation.

VISCOUNT COLVILLE OF CULROSS

No, I do not think it will affect the Matrimonial Causes Acts. There is nothing in the Appeals Schedules which touches upon those, and I think the plan is more to bring the magistrates' courts proceedings and the guardianship proceedings in line with each other—that is to say, except for Clauses 1 and 10. So I do not think there will have to be another consolidation of matrimonial causes legislation. But I am not at all sure that there will not need to be a consolidation of Guardianship Acts, because although that was done to some extent in 1971 we shall now have this Act and the various other powers of magistrates' courts which, for all I know, may be thought a suitable subject for consolidation—but not, I think, matrimonial causes.

§LORD HOY had given Notice of his intention to move Amendment No. 9:
Page 10, line 4, at end insert ("except that, in regard to any one matter, only one parent shall be entitled to sue or be sued on behalf of a pupil child; that, subject to the existing rules of tutelage as amended by this Act, the same parent shall continue to act as tutor for the purposes of the said matter; that only one
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parent shall be entitled to execute any deed or discharge any obligation on behalf of a pupil child; and that, subject to the existing rules of tutelage as amended by this Act, the same parent shall continue to act as tutor in respect of the said matter.").

§
The noble Lord said: With consent, I will not move this Amendment but will make my argument on it on the Question, That Clause 10 stand Part of the Bill, if that is convenient to the Committee.

I should now like, if I may, to raise the question I mentioned earlier in connection with the clause concerning age. At the present time, as 1 understand it, there is a differentiation in age between the male and the female of the species. It was felt by my legal advisers that we should take advantage of this occasion to obviate that differentiation. That is the sole purpose of the Amendment. If the noble Viscount can tell me when he replies that the Government also take this view, then the matter can quite easily be dealt with by putting down an Amendment at Report stage. I withdrew the first Amendment because it would have meant a radical change in the Bill, and I was very well aware of this. But I am bound to say to the noble Viscount that another reason for withdrawing the Amendment was that only to-day I received a letter from the Law Society of Scotland outlining their views and also their complaints—because in their letter they say that this matter has not been the subject of discussion with or of an inquiry from the Scottish Law Commission or any legal body, or any other organised society or association in Scotland before its appearance in the Bill.

I should have thought, if this is correct, that it is due to a little mismanagement—I would not put it any higher than that—because in the letter which I have before me they describe this change in Clause 10 not only as "radical" but as "revolutionary". It seems to me that if they regard it in this way one might have assumed that some consultation would have taken place between the Scottish Office and the law societies as they are represented in Scotland. As to the argurnent I was making earlier, the noble Viscount suggested that perhaps I could "spell it out" when we arrived at Clause 10.

Yes. I will put it to the Committee as the Law Society of Scotland have put it to me, and I will deal with it as briefly as possible. In any case, I will send the whole of this document to the noble Viscount. They say:
The Council considers that it is most important to have regard to the enforcement provisions when considering whether the substantive provisions themselves are desirable. Subsection (1) and subsection (3) are not in terms expressed to be interdependent, but they are subsections of the same section and the wording of subsection (3) echoes in many respects the wording of subsection (1). The Council therefore proceeds on the assumption that the remedy provided in subsection (3) is necessarily related to the changes in the law provided in subsection (1).
I shall omit the next part and continue as follows:
Now the remedy and the only possible remedy (for there is none at common law) for any dispute arising under subsection (1) is that provided by subsection (3) to the effect that either party may apply to the Court and the Court may make such order as it may think proper. The application is to be by a person who in the context is presumed to be living amicably in family with his or her spouse. Thus for the first time in the long history of what the Council is pleased to regard as the very civilised system of law in Scotland, it is contemplated that spouses living together in the family home will resort to litigation. If that is to be the remedy then the Council respectfully submits that any provision which needs such a remedy to make it work must itself be bad because it leads to this antisocial and undesirable result. It contemplates that a purely domestic difference of opinion should be the subject of litigation.
They then go on to argue about costs, and this is what they say:
On the question of the litigation there are further matters which follow. Although the background or philosophy of the proposal seems to be the modern cry for equality of the sexes there has yet been no suggestion anywhere made that it will be other than the husband who in domestic dispute will have to pay expenses. Accordingly what is being effectively proposed is that a husband whose wife differs on a matter affecting the welfare of a child (of any age up to 18 be it noted) may threaten him with a litigation in which he will have to pay two sets of expenses, win or lose. That will not only be an undesirable result in itself in his pocket, but it will of course lead to a lowering of the domestic expenditure in other ways and especially lower expenditure on the child whose welfare was supposed to be the de quo of the litigation.
That is the considered opinion of the Law Society of Scotland. I am bound to point out in fairness that the notice has
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been so short that they have not had time to discuss it as a Council. In fact, they will be meeting on Friday the 23rd to discuss this in greater detail. But they felt that, inasmuch as your Lordships will be dealing with the Committee stage this evening, at least they ought to have their proposals put forward before it was too late. The noble Viscount asked me what the case was, and I am now quoting the case as it has been given to me by the Law Society of Scotland. I should be grateful to have an answer on that point. I am also interested in the proposal—not made by the Society—in the second Amendment which was purely a personal one resulting from what was said by a legal adviser on the question of age. I hope the noble Viscount will be able to say something about that matter also.

I am glad that the noble Lord, Lord Hoy, has dealt with the matter in this way rather than by means of those Amendments, because they were very intricate, particularly the first one; and I am bound to say again that I was not wholly certain of the problem he was trying to deal with. Of course if at any time he should wish to discuss these things, I am at his service, and so, I am sure, is my noble friend Lord Polwarth, whose part of the Bill this is. If there has been some failure in consultation on behalf of the Scottish Office, I am sorry. But of course we will take into account views like those that the noble Lord has drawn to our attention. If he will let me have the correspondence I will see that it is looked at most carefully.

I spent one and a half hours this morning with Scottish advisers talking about the whole of this area of the Bill, including age. The answer on age—and I am sorry to go on sheltering behind Law Commissions—is that the Scottish Law Commission is at this moment looking at this matter. I do not think it is necessarily right simply to equate boys with girls and make them both 12 or both 14 for the changeover from tutelage to curatory. I do not think 14 is better than 15, or 13, or 16. We need to have a good look at what are the legal situations that arise under tutelage as against curatory, to see whether these are satisfactory to modern circumstances, and to see when they
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should stop, bearing in mind that a person remains a minor until 18. The whole of this area needs rather more explanation than a simple Amendment would achieve to equate the changeover between the status of the two things in Scotland. Therefore if the Scottish Law Commission could be allowed to look at this matter in more depth, we should probably obtain a more satisfactory answer.

As for the other point, that raised by the Scottish Law Society, starting at the end, on costs, I suspect that their argument is the one which I attempted to answer: there is nothing in the Bill, but it is a practical consequence in most households that the wife is not able to pay legal costs. If an action of this sort were started it would be the husband who would have to pay both. So far as I can see, there is nothing in the Bill which actively prevents a wife's having costs awarded against her if she can afford to pay them. It is therefore a matter of practice rather than law.

The Scottish Law Society is arguing, as I understand it and without doing more than having heard the letter, that Clause 10(1) provides for equal rights; Clause 10(3) provides for the remedy whereby these equal rights are sorted cut if they conflict. They are perfectly right in that. There may be rare occasions when the Scottish common law could also provide another remedy, if one of the spouses has been negligent in exercising his or her duties. This would be extremely unusual. But they are right in saying that Clauses 10(1) and 10(3) are bound together. If you want to have equality for the two adults, equality between the sexes—which is what I thought everybody on Second Reading wanted, including the noble Lord, Lord Hoy—certainly that is the policy of the Government. It is sensible that one should not just leave it at stating the principles of equality, but also provide machinery whereby the disputes that may arise as a result of that change can, if necessary, be litigated.

I do not know—we have had discussions about this earlier—to what extent in England and Wales Clause 1(3) may be used; or, in Scotland, to what extent Clause 10(3) will be used. It would be irresponsible of Parliament to change the law in this way and not provide any
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machinery whereby the Sheriff's court, or the Court of Session, could deal with resultant rounds. That is not to say that I do not understand that it is a fairly major change. It is part of the Government's policy that we should promote the equality of women in the family life, as we are trying to do in many other respects. If the Scottish Law Society do not like it, I am sorry; but I am perfectly prepared to consider alternative methods of enforcement if they can think of anything better than what we have in Clause 10(3).

As I said, this morning I have been through this in fairly considerable detail with the advisers to my noble friend Lord Polwarth. None of us could see any problems which ought not to be able to be sorted out by reasonable people, and very few problems that ordinary, sensible solicitors would not be able to get over when they took account of the fact that both the husband and the wife might have powers over, for instance, things like children's property and matters of that sort. We discussed this fully; nobody can think at the moment of any substantial problems. I hope, therefore, that if the Scottish Law Society at theft Council meeting can think of any difficulties, they will rapidly draw them to our attention because we shall be glad to know of them. On the matter of principle I am quite unrepentant. I think it is right that the husband and wife should have equal rights over their children.

I am grateful to the noble Viscount for his reply. The Scottish Law Commission is actively engaged in considering this particular point. Quite obviously one would not want to push it prematurely but would look for the correct answer. Regarding the second point, may I make this appeal to the noble Viscount: the Scottish Law Society feels that this Bill has been rushed considerably, although they admit that the printing date was February 1. The noble Viscount knows that the law does not work very quickly, nor do lawyers' offices work very quickly. The Society's first meeting, I believe, will be on Friday. May I suggest that perhaps we might not push on too quickly to the Report stage on this Bill—perhaps we should consult
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the Whips about this—so that the Secretary of State can be given an opportunity, if the complaint is correct, to call the Scottish Law Commission in for consultation, perhaps immediately after the meeting has been held? I do not detract one word of what I said on Second Reading; but I agree that to avoid troubles we should let them formulate whatever Amendments they think are necessary under these circumstances. All I would plead for is a little more time before we get to the Report stage, so that the Bill is not rushed through without due consideration being given to the views of the Scottish Law Society.

VISCOUNT COLVILLE OF CULROSS

I suspect that there will be an occasion in another place for a fairly thorough Committee stage. Therefore the Scottish Law Society need not think that if they do not get all their Amendments dealt with in this House it is the end of the world. I am in favour of starting some fairly important pieces of legislation in this House so that we do not get everything at the end of July. This gives the other place an opportunity to put down Amendments in whatever degree is necessary. I do not know how happy the usual channels would be to delay the Bill unduly, but I will see what we can do about the Report stage.

This is a drafting Amendment. Although I could spend five minutes explaining it, I will not do so. I beg to move Amendment No. 11.

§
Amendment moved—
Page 15, line 10, at end insert ("at the first place where the applicant is mentioned, and
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the words "the person given the custody" at the other two places; and for the words "that person" there shall be substituted the words the person so served ").—(Viscount Colville of Culross.)